The Palmer Report on the Mavi Marmara Incident and the Legality of Israel’s Blockade of the Gaza Strip

The Palmer Report on the Mavi Marmara Incident and the Legality of Israel’s Blockade of the Gaza Strip

Overall, the Palmer Report is of high quality and merits close attention. I would strongly urge those interested to read, at the least, the very concise summary of its findings at pages 1-6, where the conduct of Israel, the Mavi Marmara protestors and Turkey all come in for criticism.  Israel in particular is found to have used “excessive and unreasonable” measures in boarding the Mavi Marmara resulting in “unacceptable” loss of life; and to have subsequently engaged in “significant mistreatment” of those detained (pages 4-5). There is also an excellent summary of the essential steps in the legal logic of both the Turkish and Israeli national inquiry reports (at paras. 23 and paras. 46-47). The Palmer Report itself, however, concludes the blockade of Gaza to be legal. On this essential point, I consider there to be serious gaps in the Report’s logic. Before turning to this, a few points should be noted.

First, the inquiry had no direct mandate to examine legal issues or render an opinion on the applicable law (as the report notes inter alia at paras 3, 5, 6, 14 and 15). Its task was to review the reports and findings of two widely divergent national inquiries into the incident, and to: “(a) examine and identify the facts, circumstances and context of the incident; and (b) consider and recommend ways of avoiding similar incidents in the future.” It was not asked, for example, to render an opinion on the applicable law to the Secretary-General. The key legal analysis is thus contained in an appendix and represents only the views of the Chairman and Vice-Chairman; indeed, the whole report predominantly reflects the conclusion of the Chairman and Vice-Chairman, with the Israeli and Turkish panel members appending a partial concurrence and a dissent, respectively.

My own analysis of the blockade is available in the current pre-publication British Yearbook of International Law. I only sketch the path of my analysis here, but to my mind these are the questions that any balanced assessment of the legality of the blockade must address. Starting from the proposition that blockade is ordinarily only available in an international armed conflict (IAC), the relevant questions are:

(1)  Is the conflict between Israel and Hamas an IAC, and if so, on what reasoned legal basis?

(2)  Alternatively, is the conflict between Israel and Hamas a non-international armed conflict (NIAC) by reference to the Tadić criteria (a conflict of sufficient intensity between a state and a sufficiently organised armed group)?

(3)  If it is a NIAC, on the basis of State practice and opinio juris, is it clearly the case that blockade is available in NIACs?

(4)  Presuming the doctrine of blockade to be applicable, were its requirements met?

(5)  Irrespective of the precise legal basis for the boarding, was Israel’s use of force against the Mavi Marmara excessive?

(6)  What were the applicable human rights standards governing Israel’s conduct of the Mavi Marmara boarding and subsequent treatment of detainees and were they adhered to?

Any approach that does not consider all of these questions is dodging or excluding an issue. I will set aside here question (6) for reasons of space.

The Palmer Report’s discussion of blockade is split between the report itself and Appendix I (containing the views of the Chairman and Vice-Chairman on the applicable law). My concerns about the Report’s approach to questions (1)-(5) are outlined below.

On (1), the Report characterise the conflict as an IAC without – regrettably – any legal reasoning; it simply asserts that this conclusion is based on the “facts as they exist on the ground”. This is simply dodging the law. The Report further asserts that the conflict has “all the trappings of an international armed conflict” (para 73) seemingly on the basis that: (a) 5,000 rockets were fired into Israel from Gaza in 2005-2009 causing more than 25 deaths, and significant further injuries and psychological damage to Israel’s civilian population (para 71); (b) this threat originates beyond Israel’s borders (para 73); and (c) the conflict implicates Israel’s right of self-defence (para 73). All three grounds provide a dubious legal, or even common-sense, basis for concluding the conflict is an IAC. Hamdan v Rumsfeld, correctly in my view, emphasised that IACs are conflicts between States and that conflicts with non-State actors are inherently NIACs. It is not enough to make the law of IAC applicable that the conflict crosses borders or that it commenced with an armed attack by a non-State actor capable of giving rise to a right of self-defence. Further, while the rocket attacks are grotesque, and clearly criminal, terrorist acts they do not have “all the trappings” of a conflict between regular national forces. They have all the trappings of conflict between a State and irregular forces.

As Marko notes, the Report’s Legal Annexe takes a slightly different position, and appears to endorse the US Civil War Prize Cases as providing a legal basis for invoking blockade against a non-State actor. This analysis goes to my questions (2) and (3) above. The Prize Cases are underpinned by the nineteenth century doctrine of recognition of belligerency. The basic problem is that there is real doubt that the doctrine survived into the twentieth century: it is generally thought to have fallen into desuetude (see, for example, the Turkel Commission Report, para 42 n 147).

More generally, one cannot make the case that blockade is available in a NIAC without engaging in an analysis of State practice after the US Civil War. In doing so, one must not abandon the ordinary rules of customary international law: one needs to find States acting in a manner consistent with blockade (State practice), while claiming they had a legal right to exercise blockade in a NIAC (opinio juris). One must also look to whether such actions have been widely denounced by other States, if so they cannot be taken to be rule creating. It is not enough that some State practice feels like blockade. For example: France’s measures of visit and search against foreign vessels suspected of weapons smuggling during the Algerian war were not justified as blockade, and were widely denounced by the international community; Sri Lanka during its civil war never declared a laws-of-war blockade, but did take measures available under the laws of peace within its national waters to prevent weapons smuggling. Most problematically European States widely denounced the rights of any party to the Spanish Civil War to engage in blockade. Some support might be drawn from the general lack of protest of Israel’s blockade against Lebanon in 2006 when taking action against Hizbollah. The Palmer Report, however, simply relies on the Prize Cases. The idea that the modern law can be completely exposed by reference to a single set of national proceedings 150 years old is dubious at best.

On (4), the Legal Annexe acknowledges that “a blockade as a method of warfare is illegal if the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage obtained by the imposition of the blockade” (p. 89, para 36). On the facts, the Palmer report concludes (para. 78) that the hardship caused to the population of Gaza is caused by land border restrictions and the prospects of delivering sufficient relief for 1.5 million people by sea are slight (especially in the absence of a functioning commercial port). Thus, the blockade regime should not be impugned by reference to the border-crossing regime.

There is perhaps some merit in this approach, but I find it unconvincing. The two regimes serve a single ostensible objective: the prevention of weapons and dual-use goods reaching Hamas. Whether proportionality analysis should allow such salami-slicing in this context is questionable. Hypothetically, if one accepted that at the relevant time the border regime inflicted disproportionate civilian damage and that the maritime blockade was implemented to perfect the land-border restrictions, then it would seem odd to conclude that the blockade itself was proportionate while the underlying measure was not (although note Shany’s argument that the military advantage secured by a blockade could be sufficiently distinct to justify separate treatment). Indeed, the Israeli national report refused to adopt such piecemeal analysis, concluding that the two regimes were linked at the tactical level (see the Turkel Commission Report, Part 1, at para 63 and the EJIL:Talk! blog post by Amichai Cohen & Yuval Shany).

As to question (5), regarding the level of force used in the incident, the Palmer Report findings are much harder on Israel than most other reports or commentary (other than the report of the Judge Hudson Philips Fact Finding Mission, paras 162-173, for a critical examination of which see Yuval Shany’s blog post). To oversimplify, some approaches to the question have assumed that the relevant standards are found (almost) exclusively in human rights law (e.g. the Hudson Philips Report) and some that the relevant standards are found (almost) exclusively in international humanitarian law (e.g. the Turkel Commission Report). The Legal Annexe to the Palmer report, as Marko notes, does the best job to date of engaging in a balanced discussion of how these two bodies of law relate to each other. The Palmer Report concludes:

(a)   The boarding was attempted by surprise, without immediate prior warning or any attempt to use the lesser means the force commander had at his disposal under operational orders including the use of “skunk bombs”, water cannons, shots across the bow, etc. The boarding was carried out with a level of force – several hours steaming away from the blockaded area – consistent only with a far more imminent threat to Israel. It was thus “excessive and unreasonable” (para 117).

(b)  As to the use of force aboard the vessel, the report finds that Israeli forces faced significant, violent and organised resistance upon boarding and were entitled to act in self-defence. However, the violence used in the Israeli response “unacceptable” (para. 134). “The Panel concludes that there has been no adequate explanation provided for the nine deaths or why force was used to the extent that it produced such high levels of injury” (para. 131), especially as regards those shot multiple times, including at close range and in the back.

These are all presented as judgements made on the facts without direct reference to legal standards. The Legal Appendix, however, goes into more detail. It notes that in the enforcement of a legal blockade a vessel that resists capture may be “attacked”, but under IHL this has a narrow meaning: “warnings must be given to the vessel prior to any attack … civilians may not be targeted, unless they take active part in hostilities. Moreover, the military advantage of the attack needs to be weighed against the collateral casualties.  If the latter are excessive, the attack would be illegal” (p. 92, para. 47). This is clearly correct. Elsewhere it concludes: “The level of force used to enforce … [a right of blockade against a civilian vessel] must be proportionate; in particular, it must be limited to the level necessary to achieve the military objective” (p. 102, para 72). It does not, on first reading, offer any authority for the latter proposition but I would certainly concur and add that the ordinary international law applicable in peace-time law enforcement action would be broadly similar (the need for warning shots, force as a last resort, and then only what was necessary and proportionate as in MV Saiga (No 2)). What is notable is the strictness with which the Palmer Report construed the requirement of prior warning immediately before boarding. Israel had clearly warned the flotilla in general that unless it changed course it would be subject to boarding; and it can plausibly be argued that, when resistance is expected, the element of surprise in a boarding may offer less risk to human life.

Overall, the report is generally clear, accurate and accessibly written. Its most regrettable element is the sometimes half-hearted effort to physically separate the discussion of facts and law and suggestions that a policy-oriented view of the facts may shape applicable law. The deliberate consideration of the blockade in total isolation from the impact of related tactical measures on the civilian population of Gaza is also not particularly convincing, and provides, in my view, an unsatisfactory basis on which to conclude the blockade is legal.

Post script: It appears from this press release that Turkey will seek that the General Assembly refer the question of the legality of the blockade to the ICJ for an advisory opinion.